State v. Kelly, Not Reported in Atl. Rptr.

(2020)

2020 WL 6538397 When Officer Bryan Orndorf went to the area to follow
Only the Westlaw citation is currently available. up on the tip, he found a black Cadillac parked behind a
silver minivan, as described by the tipster. Two additional
UNPUBLISHED OPINION. CHECK officers joined Officer Orndorf on scene. The suspect vehicle
COURT RULES BEFORE CITING. had heavily-tinted windows. Even after the officers shined
spotlights on the car, they could not determine whether it
Superior Court of New Jersey, Appellate Division. was occupied and if so, how many occupants might be in
the car. Officer Orndorf used his patrol car's loudspeaker to
STATE of New Jersey, Plaintiff-Respondent, instruct the driver (later identified as defendant) to roll down
v. the window. The officer received no response to his request.
Twenty seconds later, he again asked the driver to roll his
Kevin KELLY, a/k/a Kevin Pallanta and
window down. Defendant only partially lowered his window,
Kevin T. KellyPallanta, Defendant-Appellant. so the officer instructed him to roll all the car windows down.
Defendant rolled just his window down. He never lowered the
DOCKET NO. A-2614-18T1 remaining windows. When Officer Orndorf asked defendant
| if anyone else was in the car, defendant avoided the question.
Submitted September 23, 2020
| One of the officers at the scene expressed a concern that
Decided November 6, 2020 while the driver displayed his left hand outside the vehicle,
he did not “know what [the driver was] doing with is right
On appeal from the Superior Court of New Jersey, Law
hand.” Accordingly, defendant was ordered out of the car.
Division, Cumberland County, Indictment No. 18-06-0552.
Even though defendant was directed to keep his hands raised,
Attorneys and Law Firms when he exited the vehicle, he immediately shut the door
behind him. Officer Orndorf noted defendant was Caucasian
Joseph E. Krakora, Public Defender, attorney for appellant and wore a black t-shirt, consistent with the tip. Defendant
(Bryan A. Small, Designated Counsel, on the briefs). was promptly patted down to ensure he did not have a weapon
on his person. Defendant referred to the vehicle as “my” car,
Jennifer Webb-McRae, Cumberland County Prosecutor, and then told an officer it belonged to his roommate, a female
attorney for respondent (Andre R. Araujo, Assistant whose last name he did not know. He again was asked if
Prosecutor, of counsel and on the brief). anyone else was in the car but evaded the question. According
to Officer Orndorf, defendant was handcuffed and placed in
Before Judges Accurso, Vernoia and Enright.
a patrol car “until [the police] did [their] investigation.”
Opinion
Eventually, defendant told Officer Orndorf that another
PER CURIAM person, Christopher Meyers, was in the car. The police
ordered Meyers out of the vehicle and as he stepped out, they
*1 Defendant Kevin Kelly appeals from the denial of his
noted he was Caucasian and wore a white t-shirt, consistent
suppression motion and his conviction following a jury trial in
with the tipster's information. Meyers left his passenger door
October 2018. We affirm the suppression ruling, substantially
open, with the window up. He was patted down for weapons,
for the reasons outlined in the motion judge's written opinion.
handcuffed, and placed in a separate police car pending
We also affirm defendant's conviction.
further investigation.

At approximately 3:00 a.m. on September 5, 2017, police

Although no weapon was recovered by this point, an
received an anonymous tip that two white males were parked
unidentified officer told defendant he spotted a “needle” in
in a black Cadillac in a certain section of Millville known to
the car. While standing outside the vehicle, Officer Orndorf
be a high-crime area, and that the passenger had a handgun
also saw the orange cap of the syringe before it was retrieved.
in his lap. The tipster reported that the suspect vehicle was
Officer Orndorf confirmed the needle protruded between the
parked behind a silver minivan, the driver wore a black t-shirt,
and the passenger wore a white t-shirt.

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State v. Kelly, Not Reported in Atl. Rptr. (2020)

center console and the driver seat, and he “recognized what

that was.” THE WEAPONS FOUND IN [DEFENDANT'S]
VEHICLE SHOULD HAVE BEEN SUPPRESSED,
*2 The unidentified officer told defendant a dog was going OR ALTERNATIVELY, A NEW SUPPRESSION
to perform an exterior sniff of the vehicle, and if the dog HEARING SHOULD OCCUR, BECAUSE THE
alerted to the car, the police would impound the vehicle and PROSECUTOR FAILED TO PRESENT ANY
request a search warrant. Subsequently, the canine dispatched EVIDENCE THAT THE SEARCHING OFFICER
to the scene positively alerted to the Cadillac. Officer Tyler - WHO DID NOT TESTIFY - HAD ACTED
Menz then retrieved the syringe from the car, spoke to his REASONABLY IN STOPPING AND SEARCHING
sergeant, and went back to the car to recover a BB gun he THE VEHICLE AND BREAKING THE THRESHOLD
had spotted inside the vehicle while retrieving the syringe. TO LOOK INSIDE.
Defendant was placed under arrest once the syringe was
POINT II
found. As the suppression judge noted, before the canine sniff
occurred, one of the officers briefly put his head inside the THE WEAPONS FOUND IN [DEFENDANT'S]
Cadillac through the open driver side window. However, the VEHICLE SHOULD HAVE BEEN SUPPRESSED
judge was unable to discern from the motor vehicle recording BECAUSE THE STATE FAILED TO ESTABLISH
(MVR) footage of the incident whether the officer placed his THE BONA FIDES OF THE CANINE WHO
head inside the Cadillac before or after the police discovered PERFORMED THE SNIFF FOR [A CONTROLLED
the syringe. DANGEROUS SUBSTANCE] TO SUPPORT
PROBABLE CAUSE TO SEARCH THE VEHICLE.
Defendant's car was impounded after the canine sniff. The (NOT RAISED BELOW).
police obtained a search warrant for the Cadillac, and when
it was executed, they recovered two rifles, a dagger and a POINT III
sawed-off shotgun.
[DEFENDANT'S] CONVICTION FOR UNLAWFUL
POSSESSION OF A FIREARM AND POSSESSION
Defendant moved to suppress the evidence from the stop.
OF A WEAPON BY A CONVICTED PERSON MUST
The suppression judge denied the application, based on his
BE VACATED BECAUSE AIRSOFT GUNS ARE
review of the MVR footage and the credited testimony of
NOT FIREARMS[.] (NOT RAISED BELOW).
Officer Orndorf, as well as the testimony of another officer.
Defendant was convicted of third-degree unlawful possession POINT IV
of a weapon, N.J.S.A. 2C:39-5b(2); fourth-degree possession
of a prohibited weapon, specifically, a blade larger than five THE CONVICTION OF POSSESSION OF A
inches, N.J.S.A. 2C:39-3(e); and second-degree possession of PROHIBITED WEAPON SHOULD BE VACATED
a weapon by a convicted person, N.J.S.A. 2C:39-7. BECAUSE THE STATE FAILED TO PROVE THAT
[DEFENDANT] POSSESSED A WEAPON WITH AN
Following defendant's conviction, the trial judge denied his UNLAWFUL PURPOSE UNDER N.J.S.A. 2C:39-3
motion for judgment notwithstanding the verdict as to the AND THE STATE'S PER SE BAN ON DAGGERS IS
second- and third-degree offenses. At sentencing, defendant UNCONSTITIONAL[.] (NOT RAISED BELOW).
received an eight-year prison term with a five-year parole
disqualifier for second-degree possession of a weapon by a A. The State Failed to Prove that [Defendant]
convicted person; a four-year term for third-degree unlawful Possessed A Weapon with An Unlawful Purpose
possession of a weapon; and an eighteen-month term for Under N.J.S.A. 2C:39-3.
fourth-degree possession of a prohibited weapon. The judge
B. The State's Per Se Ban on Daggers Is
directed that the sentences run concurrently.
Unconstitutional.

On appeal, defendant raises the following arguments: POINT V

POINT I THE TRIAL COURT PREJUDICED [DEFENDANT]

BY FAILING TO PROPERLY INSTRUCT THE JURY

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State v. Kelly, Not Reported in Atl. Rptr. (2020)

ON THE EFFECTS OF A PARTIAL VERDICT Super. 452, 462 (App. Div. 2000) (quoting State v. Dickey,
AND BY FAILING TO REMIND [JURORS] OF 152 N.J. 468, 479-80 (1998)).
THEIR OBLIGATION NOT TO SURRENDER THEIR
HONEST CONVICTIONS MERELY TO RETURN A An investigatory detention “occurs during a police encounter
VERDICT[.] (NOT RAISED BELOW). when ‘an objectively reasonable person' would feel 'that his
or her right to move has been restricted.’ ” State v. Rosario,
POINT VI 229 N.J. 263, 272 (2017) (quoting State v. Rodriguez, 172
N.J. 117, 126 (2002)). The United States and New Jersey
THE TRIAL COURT FAILED TO TAKE
Constitutions allow an investigatory stop “where a police
APPROPRIATE ACTION WITH RESPECT TO A
officer observes unusual conduct which leads him reasonably
SLEEPING JUROR[.] (NOT RAISED BELOW).
to conclude in light of his experience that criminal activity
POINT VII may be afoot.” Terry v. Ohio, 392 U.S. 1, 30 (1968); State v.
Davis, 104 N.J. 490, 504-05 (1986). “[A] group of innocent
THE STATE FAILED TO PROVIDE A circumstances in the aggregate can support a finding of
SUPPLEMENTAL POLICE REPORT RELATED TO reasonable suspicion.” State v. Stovall, 170 N.J. 346, 368
[ ] CO-DEFENDANT MEYERS[,] CONTRARY TO (2002).
ITS OBLIGATIONS UNDER THE RULES OF
COURT. “An anonymous tip, standing alone, is rarely sufficient
to establish a reasonable articulable suspicion of criminal
*3 Regarding Point I, we “must uphold a trial court's factual activity.” Rodriguez, 172 N.J. at 127 (citations omitted).
findings at a [motion to suppress] hearing when they are “When an anonymous tip is involved, additional factors must
supported by sufficient credible evidence in the record.” State be considered to generate the requisite level of reasonable and
v. Hathaway, 222 N.J. 453, 467 (2015) (citing State v. Elders, articulable suspicion.” State v. Privott, 203 N.J. 16, 26 (2010)
192 N.J. 224, 244 (2007)). This is especially true when the (citations omitted). “[T]he reliability of an informant's tip
findings of the trial court are “substantially influenced by must be analyzed in light of the totality of the circumstances.”
[its] opportunity to hear and see the witnesses and to have State v. Williams, 364 N.J. Super. 23, 31 (App. Div. 2003)
the ‘feel’ of the case.” Elders, 192 N.J. at 244 (quoting State (citing Illinois v. Gates, 462 U.S. 213, 238 (1983); State
v. Johnson, 42 N.J. 146, 161 (1964)). By contrast, the trial v. Novembrino, 105 N.J. 95, 122 (1987)). “[T]here are
court's interpretation of the law and the legal “consequences situations in which an anonymous tip, suitably corroborated,
that flow from the established facts” are reviewed de novo. exhibits ‘sufficient indicia of reliability to provide reasonable
State v. Gamble, 218 N.J. 412, 425 (2014). suspicion to make the investigatory stop.’ ” Florida v. J.L.,
529 U.S. 266, 270 (2000) (citation omitted).
No constitutional justification is required for a police officer
to conduct a field inquiry. State v. Sirianni, 347 N.J. Super. “An informant's ‘veracity’ and ‘basis of knowledge’ are
382, 387 (App. Div. 2002). “[L]aw enforcement officers do two highly relevant factors under the totality of the
not violate the Fourth Amendment by merely approaching circumstances.” State v. Zutic, 155 N.J. 103, 110 (1998)
an individual on the street or in another public place, by (citing State v. Smith, 155 N.J. 83, 92 (1998)). However, “[a]
asking him if he is willing to answer some questions, [or] deficiency in one of those factors ‘may be compensated for, in
by putting questions to him if the person is willing to determining the overall reliability of a tip, by a strong showing
listen ....” Florida v. Royer, 460 U.S. 491, 497 (1983); as to the other, or by some other indicia of reliability.’ ” Id. at
Sirianni, 347 N.J. Super. at 388. If the person remains free 110-11 (quoting Gates, 462 U.S. at 233).
to disregard the officer's questions and walk away, a seizure
has not occurred, and Fourth Amendment protections are *4 Here, as the suppression judge observed, the police did
not implicated. United States v. Mendenhall, 446 U.S. 544, not immediately move to arrest defendant or his passenger
553 (1980). However, “ ‘[i]f, during the course of’ ” an when they saw the Cadillac parked in the location matching
officer's reasonable inquiries, “the circumstances ‘give rise to the tipster's description. Additionally, they did not surround
[unrelated] suspicions ..., an officer may broaden [the] inquiry defendant's vehicle. Instead, the police shined spotlights into
and satisfy those suspicions.’ ” State v. Chapman, 332 N.J. the car to be able to see inside. The judge concluded that a
critical fact in this “fluid situation” was that officers could not

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State v. Kelly, Not Reported in Atl. Rptr. (2020)

tell if anyone was inside the car because of the heavily tinted vehicle. United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir.
windows. As it “was almost 3[:00] a.m. and the location [of 1994); accord State v. Smith, 134 N.J. 599, 618 (1994).
the Cadillac] was a high crime area,” the judge recognized
“the potential for danger” that prompted the police not to [B]ecause of the need to protect police officers and because
approach the Cadillac, but use a loudspeaker to ask the driver of the minimal intrusion the requirement to exit the car
to roll down his window. imposes on the passenger .... the officer need point only
to some fact or facts in the totality of the circumstances
We agree with the suppression judge that the act of shining that would create in a police officer a heightened awareness
the spotlights was not intrusive. See State v. Reininger, 430 of danger that would warrant an objectively reasonable
N.J. Super. 517, 534 (App. Div. 2013) (holding that the use officer in securing the scene in a more effective manner by
of a flashlight by an officer to observe the interior of a car ordering the passenger to alight from the car.
does not turn an observation into a search). Likewise, we
[Smith, 134 N.J. at 618.]
agree with the judge that communicating by loudspeaker
was objectively reasonable and “unobtrusive” under the
Here, the police were warned by an anonymous tipster in the
circumstances, particularly since the police were following up
early morning hours that a person parked in a Cadillac, in
on an anonymous tip about a handgun on the lap of one of the
a high-crime area, had a gun in his lap, and they observed
vehicle's occupants.
defendant try to hide from them, and ignore their requests to
lower his windows and to keep his hands up. Thus, we are
As their use of a loudspeaker did not result in any response,
satisfied the police were justified in asking him to exit his
the police waited less than a minute before they again
vehicle. Further, due to their heightened suspicion, the police
asked defendant to lower his window. Instead of complying,
also had sufficient grounds to ask Meyers to step out of the
defendant “attempted to conceal himself behind the tint by
Cadillac.
only lowering the window a couple of inches” and he never
complied with the request to lower all his windows. “To be
*5 Once defendant stepped out of the Cadillac, the police
sure, a blatant attempt to hide from the police can augment
were able to verify that his attire matched the description
suspicion.” State v. Alessi, 240 N.J. 501, 523 (2020) (citing
of the tipster. Since defendant's clothing could not be
State v. Valentine, 134 N.J. 536, 551 (1994)).
seen at night through the heavily tinted windows of the
vehicle, the fact the tipster accurately described defendant's
Regarding the request of the police to have defendant exit
attire contributed to the officers' reasonable suspicion and
his vehicle, we note that the United States Supreme Court
supported the reliability of the tip. The same is true for
long ago confirmed it is “objectively reasonable for officers
what occurred when Meyers exited the vehicle, as his attire
to order a driver out of a lawfully stopped vehicle” as removal
and race also matched the tipster's description. As we have
constitutes “only a minor intrusion into a driver's personal
stated, the “basis of knowledge” for a tip is a highly relevant
liberty.” State v. Bacome, 228 N.J. 94, 104 (2017) (citing
factor under the totality of the circumstances analysis. Thus,
Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977)). On the
we are persuaded the suppression judge properly found
record before us, we are satisfied the police had reasonable
the anonymous tip was sufficiently reliable to justify the
suspicion to not only ask defendant to exit the Cadillac, but
investigatory stop that occurred once defendant was ordered
to also detain him to conduct a further investigation once he
out of the vehicle. The judge aptly reasoned:
exited the Cadillac. See State v. Matthews, 398 N.J. Super.
551, 559 (App. Div. 2008) (confirming the existence of a tip, A critical fact that cannot be ignored and was immediately
the lateness of the hour, and the confirmation of the type, apparent to the officers is that the vehicle had heavily
color, and location of the vehicle reported in the tip justified tinted windows. The legality of such tinted windows is not
an investigatory stop to permit the police to inquire what the the issue. It is the fact that the tint completely obscured
occupants of the vehicle were doing). the view of the interior even when subjected to police
spotlights. At the time the officers arrived and even after
Additionally, an officer's “suspicions may be raised so as to [defendant] was removed from the vehicle, officers were
enable him to expand the scope of the stop and ask additional, still unable to determine if anyone else was inside the car ....
more intrusive, questions” or even alight a passenger from the The existence of the tint not only increases the risk to the
officers responding to the anonymous report but also tells

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State v. Kelly, Not Reported in Atl. Rptr. (2020)

them something about the person who made the report. to a weapon in his vehicle. Indeed, the police were properly
The detail in the tip as to the race and clothing worn by concerned for their safety, at this point in their investigation,
the individuals inside the vehicle with the blacked[-]out to warrant the pat down given defendant's behavior, the late
windows indicates that the reporting person had the ability hour, the high-crime area, the existence and reliability of the
to see inside the vehicle, something the officers could not anonymous tip, and the ongoing risk that one of the occupants
do by looking at the vehicle. Confirmation of those specific of the vehicle possessed a gun. State v. Robinson, 228 N.J.
facts indicates that the reporting person may have been 529, 544 (2017).
inside the vehicle or had close access in order to make those
observations of the interior, at night. This demonstrates *6 Next, defendant contends his suppression motion
that the tip is reliable not because they confirmed the should have been granted because after the stop, an officer
description offered in the tip, but because the location, time improperly “broke the threshold” of the Cadillac by placing
of day and difficulty seeing inside the vehicle demonstrated his head inside the driver's side window. Again, we are not
that the tipster had the ability to have close contact with convinced.
the individuals in the car. This provided confirmation that
“the tipster had knowledge of concealed criminal actions.” Consistent with the Fourth Amendment to the United States
Gamble, 218 N.J. [at 428-29] (citing [J.L.], 529 U.S. [at Constitution and Article I, ¶ 7 of the New Jersey Constitution,
272]). the police must “obtain a warrant ‘before searching a person's
property, unless the search falls within one of the recognized
Lastly, the tip indicated that there was a handgun in this exceptions to the warrant requirement.’ ” State v. Cassidy, 179
vehicle on the lap of one of the occupants. “[T]he greater N.J. 150, 159-60 (2004) (quoting State v. DeLuca, 168 N.J.
the threat to public safety, [ ]the greater the need may be 626, 631 (2001)). Because a warrantless search is presumed
for prompt action, and thus allowances must be made for invalid, the State has the burden to prove, by a preponderance
the fact that perfect knowledge is often not attainable at the of evidence, that it “ ‘falls within one of the few well-
moment the police must act.” Hathaway, 222 N.J. [at 472]. delineated exceptions to the warrant requirement.’ ”. State v.
Pineiro, 181 N.J. 13, 19-20 (2004) (quoting State v. Maryland,
The suppression judge's reasoning is consistent with the 167 N.J. 471, 482 (2001))
analysis in State v. Arthur, 149 N.J. 1, 11 (1997), where
our Supreme Court confirmed that “[p]olice officers should One such exception is the protective sweep of a vehicle. It
consider whether a defendant's actions are more consistent is permissible for law enforcement to conduct a warrantless
with innocence than guilt; however, simply because a search of a vehicle's passenger compartment when the totality
defendant's actions might have some speculative innocent of circumstances supports a reasonable suspicion a driver or
explanation does not mean that they cannot support passenger is dangerous and may gain immediate access to
articulable suspicions if a reasonable person would find the weapons. Gamble, 218 N.J. at 431-32.
actions are consistent with guilt.”
Here, the suppression judge concluded a valid protective
We also recognize that a police officer is permitted to pat sweep of the Cadillac was appropriate due to: the reliability
down a citizen's outer clothing incident to a Terry stop when of the tip, which “indicated there was a handgun in the car on
the officer perceives a risk to his or her safety and has reason the lap of one of the occupants”; defendant's failure to obey
to believe that the individual is armed and dangerous. State Officer Orndorf's commands or answer the officer's questions
v. Diloreto, 180 N.J. 264, 276 (2004). The officer need not about whether there was anyone else in the vehicle; the
be absolutely certain that the individual is armed; “the test heavily tinted windows on the suspect car which prevented
under Terry ‘is whether a reasonably prudent man [or woman] the police from seeing its interior; and the high-crime location
in the circumstances would be warranted in the belief that of the vehicle at three o'clock in the morning. Given the
his [or her] safety or that of others was in danger.’ ” Ibid. totality of these circumstances, we agree with the judge that
(quoting Terry, 392 U.S. at 27). “[T]he same conduct that the limited sweep was reasonable, as “it was probable that
justifies an investigatory stop may also present the officer the defendant [and his passenger] would have been returned
with a specific and particularized reason to believe that the to their vehicle, thereby exposing the officers to the danger
suspect is armed.” Privott, 203 N.J. at 30. Such is the case that those individuals would then have immediate access to
here, particularly since the conduct of defendant enhanced, any firearms that may be contained therein.” As the judge
rather than assuaged the officers' concerns that he had access

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State v. Kelly, Not Reported in Atl. Rptr. (2020)

correctly noted, “the fact that no weapon was located on either by credible evidence in the record. Accordingly, the motion
[the] defendant [or his passenger] when searched ... did not judge's legal conclusions are unassailable.
eliminate the risk of their access to a weapon when returned
to the vehicle.” The judge added that We need not address at length defendant's Point II. As
defendant did not challenge the canine's qualifications before
the limited intrusion created by the officer, placing his head the trial court, we review his claim for plain error. R. 2:10-2.
through the open window and, given the nature of the risk to
officer safety, the likelihood that the defendants would have While defendant contends the State did not adequately
been permitted to return to their vehicle had the syringe not establish the qualifications of the canine that performed
been seen ... same was reasonable in this specific situation. the sniff, the State counters that information about the
canine's qualifications was provided in discovery. We are
It is evident, then, that the same reasonable suspicion that convinced that even if the State neglected to provide the
justified the investigatory stop also justified the detention canine's qualifications to defendant in discovery, he could
of defendant and his passenger for a brief additional period and should have raised any challenge regarding the canine's
while the police conducted a protective sweep for the reported qualifications in an appropriate application to the trial court.
weapon, with which defendant and his passenger could have Having failed to do so, the current challenge is deemed
armed themselves if released by the police. Gamble, 218 N.J. waived. R. 3:5-7(f). See also State v. Kim, 412 N.J. Super.
at 433. Certainly, the police were “authorized to take such 260, 268-71 (App. Div. 2010). While we often review
steps as were reasonably necessary to protect their personal allegations of error not brought to a trial judge's attention,
safety and to maintain the status quo during the course of the we need not consider such an issue unless it goes to the
stop.” United States v. Hensley, 469 U.S. 221, 235 (1985). jurisdiction of the trial court or concerns matters of substantial
See also State v. Padilla, 321 N.J. Super. 96, 108 (App. Div. public interest. State v. Robinson, 200 N.J. 1, 20-22 (2009).
1999) (ruling that officers had the right to draw their handguns Accordingly, we are persuaded this issue is not properly raised
where a caller reported a person with a gun). before us.

*7 We also see no basis to disturb the judge's finding In Point III, defendant argues for the first time on appeal
that based on the “inevitable discovery doctrine,” the police that his conviction for unlawful possession of a firearm and
were permitted to retrieve items from the Cadillac after possession of a weapon by a convicted person cannot stand
detaining defendant. The inevitable discovery exception to because airsoft guns are not firearms. Again, we review this
the exclusionary rule applies where: argument under the plain error standard, consistent with Rule
2:10-2.
(1) proper, normal and specific investigatory procedures
would have been pursued in order to complete the
As the motion judge noted, during the investigatory stop,
investigation of the case; (2) under all of the surrounding
when the syringe and gun were recovered from the Cadillac,
relevant circumstances the pursuit of those procedures
defendant was heard on the MVR telling an officer the gun
would have inevitably resulted in the discovery of the
was a BB gun. Also, at trial, Officer Menz confirmed the gun
evidence; and (3) the discovery of the evidence through
he retrieved from the car during the stop was a “CO2 powered
the use of such procedures would have occurred wholly
BB gun.”
independently of the discovery of such evidence by
unlawful means.
Defense counsel lodged no objection when the State sought
[State v. Sugar, 100 N.J. 214, 238 (1985).] to admit the BB gun, as well as the MVR referencing the gun,
into evidence at trial. Still, defendant argues that “a person is
Here, the suppression judge found that the discovery of the not guilty of possession of a firearm for an unlawful purpose
items retrieved by Officer Menz, i.e., the syringe and BB if the gun was a toy,” citing State v. Gantt, 101 N.J. 573
gun, was inevitable because defendant “was informed he was (1986). His reliance on this case is misplaced, however, as
under arrest for the 'needle,' the dog sniff had already occurred Gantt also favorably cites to another case that classified BB
and the decision to seek a warrant was already made.” The guns as handguns.1
judge's factfinding in this regard is overwhelmingly supported

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State v. Kelly, Not Reported in Atl. Rptr. (2020)

1 “[T]his latter class of less-familiar firearms ‘can best, that there was a miscarriage of justice under the law.” R.
and perhaps only, be described in terms of their 2:10-1.
operation.’ [State v. Gantt,] 195 N.J. Super. [114,] 117
[ (App. Div. 1984) ]. See also State v. Mieles, 199 As a threshold issue, we note the trial judge conducted
N.J. Super. 29 (App. Div. 1985) (holding that Code's the charge conference required by Rule 1:8-7(b). Based on
definition is broad enough to include a BB gun as a that charge conference, the judge, without objection from
firearm).” Gantt, 101 N.J. at 584. defendant, instructed the jury:
*8 N.J.S.A. 2C:39-5(b) provides:
In order to convict the defendant of [possession of a knife
(1) Any person who knowingly has in his possession any with a blade larger than five inches], you must be satisfied
handgun ..., without first having obtained a permit to carry that the State has proved beyond a reasonable doubt both
the same ..., is guilty of a crime of the second degree. (2) of the following elements:
If the handgun is in the nature of an air gun, spring gun
....
or pistol or other weapon of a similar nature in which the
propelling force is a spring, elastic band, carbon dioxide, The first element that the State must prove beyond a
compressed or other gas or vapor, air or compressed air, reasonable doubt is that Exhibit S-19 is a dagger. A dagger
or is ignited by compressed air, and ejecting a bullet or has been defined as a knife with a very sharp point and one
missile smaller than three-eighths of an inch in diameter, or two sharp edges, typically designed or capable of being
with sufficient force to injure a person it is a crime of the used as a thrusting or a stabbing weapon. Most daggers
third degree. [also] feature a full cross guard to keep the hand from riding
[ ] forward [ ] onto the sharpened blade edges. The second
In order to be found guilty of the “certain persons” statute, element that the State must prove beyond a reasonable
N.J.S.A. 2C:39-7(b)(1), the State must prove that: (1) there doubt is that the defendant knowingly possessed Exhibit
was a firearm; (2) defendant had possessed or controlled that S-19 at the time and place alleged.
firearm; and (3) defendant had previously been convicted of,
among other things, a qualifying predicate offense. Model *9 ....
Jury Charges (Criminal), “Certain Persons Not To Have
Firearms (N.J.S.A. 2C:39-7(b)(1))” (rev. Feb. 12, 2018). Under our law, possession can be actual or constructive,
sole or joint. And I also provided information previously
Since BB guns commonly utilize air, carbon dioxide or some regarding the inference that you may draw regarding
other compressed gas to fire small projectiles, they clearly possession when a weapon is found within a vehicle ....
fall under the definition set forth in N.J.S.A. 2C:39-5(b)(2). Finally, in order to find the defendant guilty, the State
See Mieles, 199 N.J. Super. at 37-38. Given that the BB gun must prove beyond a reasonable doubt that the defendant's
found in defendant's possession qualified as a handgun and he possession of the dagger was without ... any explainable,
does not contest he was previously convicted of a qualifying lawful purpose.
predicate offense, we find no basis to vacate defendant's
conviction as a certain person for the unlawful possession of N.J.S.A. 2C:39-1(r)(3) designates a dagger as a prohibited
a weapon. weapon but does not define the term “dagger.” Accordingly,
pursuant to the Model Criminal Jury Charges, a standard
In Point IV, defendant claims his conviction must be vacated dictionary definition should be utilized to explain to a jury
because the State failed to prove he possessed a dagger what is meant by the term.2 Here, the trial judge followed
for an unlawful purpose, N.J.S.A. 2C:39-3(e). It is unclear the Model Criminal Jury Charges and instructed the jury,
whether defendant's argument regarding the State's proofs without objection from defense counsel, that a dagger is “a
equates to a claim that his conviction for this weapons offense knife with a very sharp point and one or two sharp edges,
was against the weight of the evidence. If so, it would typically designed or capable of being used as a thrusting or
appear he challenges the denial of his motion for judgment a stabbing weapon.” We note this is the same definition the
notwithstanding the verdict. However, “the trial court's ruling judge discussed with counsel at the charging conference.
on such a motion shall not be reversed unless it clearly appears

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State v. Kelly, Not Reported in Atl. Rptr. (2020)

2 “The weapons statute provides specific definitions not met the heavy burden of establishing the invalidity of
for three of the weapons mentioned in N.J.S.A. N.J.S.A. 2C:39-3(e).
2C:39-3[ (e) ]. See N.J.S.A. 2C:39-1h for ‘gravity
knife,’ N.J.S.A. 2C:39-1p for ‘switchblade knife,’ and *10 We also find defendant's novel argument in Point
N.J.S.A. 2C:39-1u for ‘ballistic knife.’ A standard V unpersuasive. Approximately three-and-a-half hours after
dictionary definition should be used for instructional jurors began their deliberations, they sent a note to the trial
purposes whenever an indictment alleges possession of judge which read: “We can only agree on one charge. We
another type of weapon (dagger, dirk, stiletto, etc.) cannot come to an agreement on remaining charges. What
prohibited by N.J.S.A. 2C:39-3[ (e) ].” Model Jury do we do?” The judge and counsel discussed how to answer
Charges (Criminal), “Possession of Certain Weapons
the note and the judge proposed his response. The judge then
(N.J.S.A. 2C:39-3[ (e) ] ),” n.3 (rev. Feb. 9, 2009).
asked defense counsel if he had “any other ideas,” to which
At trial, Officer Menz testified that he found the offending counsel replied, “I don't.” Thus, the judge instructed the jury
knife in the Cadillac after defendant exited the car and was as follows:
detained. The trial record is devoid of any evidence defendant
had an explainable lawful purpose for the dagger. Thus, once [M]y answer to you is as follows. You keep deliberating.
the judge properly instructed the jury regarding the definition Okay? .... [Y]ou're going to need to keep deliberating and,
of a dagger, and the elements the State needed to prove under you know, we look at the time and the complexity of the
N.J.S.A. 2C:39-3(e), we are satisfied the jury had a sufficient case and the number of hours of testimony, that type of
understanding of the evidence before it to find defendant thing. And although it seems like a long day for you, in the
guilty of violating this statute. grand scheme of things it's been about three and half to ...
three hours and forty-five minutes of deliberations, minus
The defendant further claims the State's per se ban on daggers lunch and the time that it took, the charge and everything
is unconstitutional. He contends the broad definition of a else .... [A]lthough it might seem like a long time to you,
dagger under N.J.S.A. 2C:39-3(e) “has the effect of acting in the grand scheme of things, it's not that long. I will tell
as a per se prohibition on the possession of daggers .... [and] you this. If you need help on the definitions of whatever
runs afoul of the Second Amendment to the United States it is that I gave you in the charge, if you need me to try
Constitution.” Again, we are not convinced. and explain something to you, maybe that's different than
the way it might be written in the charge I'll be more than
“ ‘A legislative act will not be declared void unless its happy to assist. If you need to listen to testimony, it will be
repugnancy to the constitution is clear beyond reasonable played back to you and it will come through a speaker. We
doubt.’ ” State v. Buckner, 223 N.J. 1, 14 (2015) (quoting can do that as well. But for now, I'm going to ask you to
Gangemi v. Berry, 25 N.J. 1, 10 (1957)). “When reasonable continue to go back into the deliberation room and continue
people ‘might differ’ about the constitutionality of a law, deliberating. Okay? .... [Y]ou guys can chat about it. If
courts must ‘defer[ ] to the will of the lawmakers.’ ” Id. at 15 you want to listen to something, if you needed a specific
(quoting N.J. Ass'n on Corr. v. Lan, 80 N.J. 199, 220 (1979)). instruction on the law in some fashion, you know, write a
note. We're here for you.
Here, the Legislature determined that a dagger is so
dangerous that mere possession is prohibited, unless there is We are mindful the jury did not state in its note that it
evidence a defendant has an explainable lawful use for the was hopelessly deadlocked on the remaining charges after
weapon. Stated differently, if there is evidence a defendant has it reached agreement on one charge. Instead, the jury asked
an explainable lawful purpose for a dagger, the State is unable for guidance on how to proceed. Given the brevity of the
to prove the violation of N.J.S.A. 2C:39-3(e). Accordingly, jury's deliberations, the lack of objection by defense counsel
defendant's contention that the prohibition on daggers “must to the judge's proposed response to the jury's note, and the
face the same constitutional fate as per se prohibitions on lack of coercion in the judge's response to the jury, we are
other types of weapons” ignores the fact that the Legislature persuaded it was not plain error for the court to require the
included an “escape hatch” in the challenged statute, which jury to continue its deliberations, rather than instruct it about
allows for the possession of daggers for an “explainable the effects of a partial verdict. See State v. Figueroa, 190 N.J.
lawful purpose.” Under these circumstances, defendant has 219, 240 (2007).

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State v. Kelly, Not Reported in Atl. Rptr. (2020)

were asked on the record if they could proceed with the

Likewise, we are not convinced the judge committed plain
case and remain fair and impartial. Both jurors responded
error by not repeating his earlier instruction to the jury not
affirmatively. Defense counsel declined to speak to the third
to “surrender [their] honest conviction as to the weight or
juror about her ability to continue in the case, stating,
[effect of] evidence solely because of the opinion of [their]
“well, frankly, I think I know the answer.” Under these
fellow jurors or for the mere purpose of returning a verdict.”
circumstances, and mindful Juror Number One was dismissed
Our conclusion is bolstered by the fact that defense counsel
prior to the jury's deliberations, we discern no reversible error
did not ask for this instruction to be repeated, nor does the
in the judge's handling of Juror Number One.
record reflect the jury had difficulty following the judge's
initial instructions.
Finally, in Point VII, defendant argues for the first time
on appeal that the State may have failed to provide a
We readily dispense with defendant's claim in Point VI. Trial
supplemental police report to the defense. This report was
judges should take corrective action when counsel bring a
addressed at trial and the judge ordered the prosecutor to
sleeping juror to the judge's attention. State v. Scherzer,
locate and provide a copy of the report to defense counsel.
301 N.J. Super. 363, 491 (App. Div. 1997). If the judge
takes corrective action after learning of a sleeping juror and He also advised he might provide a Clawans3 charge to the
defense counsel does not request any further action, there is jury if the report was not produced. Such an adverse-inference
no reversible error. Ibid. charge is a permissible remedy for a discovery violation. State
v. Dabas, 215 N.J. 114, 140 (2013). It is unclear on this
Here, the judge, on the record, addressed his observations record if the report was produced, but it is uncontroverted that
of inattentive Juror Number One. The judge noted this juror defendant never requested an adverse inference charge based
was not asleep the first time the prosecutor brought it to his on the lack of its production. Also, defense counsel did not
attention. But when the issue was raised a second time, the mention the supplemental report during the remainder of the
judge found the juror was asleep during testimony and he trial. Under these facts, we are satisfied no appellate remedy
expressed his concern about this behavior. The judge advised is warranted on this issue.
counsel to discuss the matter over lunch to decide how they
would like to handle the matter. Defense counsel responded, 3 State v. Clawans, 38 N.J. 162 (1962). A Clawans charge
“[l]et's keep our eye on him in the afternoon session and see allows a jury to draw an adverse inference against a party
what develops.” As the discussion about Juror Number One when that party's failure to present evidence “raises a
continued, defense counsel reiterated, “I think we should keep natural inference that the party so failing fears exposure
our eyes on him in the afternoon session and ... see how he's of those facts would be unfavorable.” Id. at 170 (citation
doing in the afternoon session.” The judge deferred to defense omitted).
counsel's wishes. It does not appear from the record that Juror Any remaining claims raised by defendant lack merit and
Number One, or any juror for that matter, was sleeping or require no further discussion. R. 2:11-3(e)(2).
inattentive that afternoon.
Affirmed.
*11 The next day, the judge received a note from one
of the jurors regarding Juror Number One's inattentiveness.
The judge promptly addressed the note with counsel, and All Citations
each attorney asked that the inattentive juror be dismissed.
Not Reported in Atl. Rptr., 2020 WL 6538397
Moreover, without objection from counsel, two of the three
jurors who had discussed Juror Number One's behavior

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Government Works.

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